delivered the opinion of the court.
This was a suit brought by the respondents against the appellant to recover the value of two hundred and twenty-three bales of hay, alleged to have been sold to the appellant at the price of thirty-three dollars per ton. The record shows that the hay had just been taken from the steamboat Sucker State, and was placed on the wharf in the city of St. Louis, and was consigned to the care of one Hawley, a commission merchant; that appellant agreed to purchase the hay at the price of thirty-three dollars per ton, which agreement Haw-ley acceded to, and immediately delivered to him a card, with the following writing; “ Two hundred and twenty-three bales of hay, tight-pressed, at Sucker State,” signed “Hawley.” Appellant said he might not want the hay weighed until next morning, to which Hawley assented, but told him that in the meantime the hay should be at liis charge or expense; the appellant then told Hawley to have the hay covered with tarpaulins and he would pay for it, which was accordingly done. The next day, after the alleged sale or agreement, was wet and drizzly, and the hay was not weighed, and on the day after the hay was destroyed by fire. There was testimony introduced tending to show that by the custom of the merchants at St. Louis, the delivery of the sale ticket authorized the purchaser to take possession of the hay, and also tending to show that it only authorized the purchaser to take possession when it was weighed. The main defence relied upon by the appellant is, that the sale was incomplete, and that there was no delivery, acceptance or receipt within the meaning of the sixth section of the statute of frauds.
At common law when the seller made a proposition and the buyer accepted it, and the goods were in the possession and control of the seller, and they were separated, and required nothing further to bo done to prepare them for delivery or to identify them, the sale was complete and perfect, and the title to the goods passed at once; the buyer acquired a complete title, an absolute jus in re, and not merely a jus ad rem. But the statute of fraud has changed the principle *198of the common law, and interposed a new rale of evidence in regard to sales of personal property. The question as to wliat constitutes a sufficient delivery under the statute, and what constitutes an acceptance, is often difficult and perplexing, and any attempt towards reconciling the conflicting decisions on the subject would be wholly unavailing. Whilst some courts have been disposed to give the statute a strict construction and declare all sales void which were not made in strict accordance with it, others have interpreted it so loosely, and evaded its provisions on such slight pretext, as to amount almost to a judicial repeal of the statute.
In doubtful cases, the question must be one of fact rather than of law. It is always a question of fact for the jury whether the goods were delivered and accepted; but they must act under the direction and instruction of the court, and thus it will become a question mixed of both law and fact. It is held in New York that to constitute a delivery and acceptance of goods, such as the statute requires, something more than mere words is necessary. In addition to the language of the contract, there must be some act of the parties operating as a transfer of the possession and an acceptance by the buyer — Steindler v. Houston, 1 Comst. 261, overruling S. C. 1 Denio, 48; Archer v. Zele, 5 Hill, 205; Ely v. Ormsby, 12 Barb. 570. In Massachusetts a like doctrine has been recognized — Dale v. Simpson, 21 Pick. 384.
When upon a verbal sale of chattels anything remains to be done, between the vendor and vendee, before the goods are to be delivered, as separating the specific quantity sold from a large mass, or identifying chattels which are mixed with others, a present right of property does not attach in the vendee. But in Macomber v. Parker, 13 Pick. 183, the court lays down the doctrine in the following manner: “The general principle is, that when any operation of weight, measurement, counting, or the like, remains to be performed in order to ascertain the price, the quantity or the particular commodity to be delivered, and to put it in a deliverable state, the contract is incomplete until such operation is per*199formed. Bnt when the goods or commodities are actually-delivered, that shows the intent of the parties to complete the sale by the delivery; and weighing, measuring or counting ¡afterwards could not be considered as any part of the contract of sale, but would be taken to refer to the adjustment of the final settlement as to the price.”
Actual or manual delivery is often impracticable, as in the case of ponderous or bulky articles, and in such a case the law does not require what would be inconvenient if not impossible; and if the goods sold be placed in the power of the purchaser, or his authority as owner be acknowledged by some formal act or declaration of the seller, it will amount to a sufficient delivery and acceptance — Glasgow v. Nicholson, 25 Mo. 29; Leonard et al. v. Davis et al., 1 Black. (U. S.) 476.
In Glasgow v. Nicholson the plaintiffs were the owners of ten hogsheads of sugar, which were, on the last day of November, 1854, lying on fhe wharf of the city of St. Louis. The defendant purchased five of the hogsheads, by sample, at their store, and requested them to have the sugar weighed early next morning. The next morning the hogsheads were weighed by a city weigher, a certificate of weight and a bill of the price were delivered to the clerks of the defendant at defendant’s store, the five hogsheads being still on the wharf, one of whom stated he would attend to it. On the second day of December following the defendant sent his dray for the sugar, but only four hogsheads could be found, which four he hauled away and paid for, but refused to pay for the fifth.
This court held that it was a good delivery for the five hogsheads, and Judge Scott said “ that as the sugar was sold on the wharf, that would be the place of delivery. Nothing-more appearing, we do not see that more could have been done than was done by the plaintiffs to effect a delivery, and that with the consent of the defendants. Tho facts proved are as significant of a symbolical delivery as those mentioned in the instances above, and it is clearly shown in the evi*200,dence that the means employed were tliose usually practised in effecting the delivery of goods sold on the wharf in the city of St. Louis. After a delivery was accomplished, the sugar would be at the risk of the buyer, and if through his inattention or neglect it was lost, he cannot be relieved from the payment of the price of it.”
Where the plaintiff sold a horse to the defendant by verbal agreement, and the bargain was for immediate delivery, but plaintiff requested the defendant to lend the horse to him, and by defendant’s consent plaintiff kept the horse ; after-wards defendant refused to take the horse on the ground that there was no delivery and acceptance, and pleaded the statute of frauds. The jury, on the question being put to them, found that the bargain was complete before the arrangement as to the loan took place. And it was held by the court of Queen’s Bench that there was an acceptance of the horse by the defendant within the exception of the statute of frauds — Marion v. Wallis, 6 Ellis & Bl. 726.
In Chaplin v. Rogers, 1 East, 192, it was held that, when the facts and intentions of the parties are ascertained, it is for the court to decide whether by law they constitute an acceptance ; but if they are disputed, it is a question for the jury whether there has been a delivery and acceptance in point of fact, and their finding that there was an acceptance puts an end to the question of law.
The question was discussed with much learning and ability by Judge Leonard in the case of Cunningham v. Ashbrook, 20 Mo. 533, and the conclusion arrived at was that to constitute a delivery within the meaning of the statute of frauds there must be both a change of the actual and civil possession, and whether such sale took place was a question for the jury; and that the principle that in a sale of goods no title passes while any act such as counting, weighing, or measuring remains to be done by. the seller, is only applicable when such act is necessary to separate the goods from a larger mass, and does not apply to the sale upon fixed terms by weight to be subsequently ascertained of goods already separated, in *201which cases title passes by delivery, and as a consequence the loss by destruction of the goods after they are delivered and before they are weighed will fall upon the buyer. The bales of hay here were separated and identified. They were lying on the wharf by themselves, not mixed with any other commodities. Weighing was all that was necessary, and that was only essential to enable the parties ,to determine the price when they made their settlement. Nothing more, then, as respected the hay was required of the sellers; and if upon the agreement the respondents relinquished all control over it, and the appellant by his acts and declarations assumed the ownership, the sale, delivery and acceptance was complete and amounted to a transference of the title to‘the property. And whether the passing of the sale note was symbolical of a delivery, or whether the buyer’s request that it should not be weighed until the next morning, his agreeing to pay the charges and expenses from the time of the sale, and employing Hawley to see that it was properly covered on his account, amounted to an acceptance and receipt, were all matters of fact to be found by the verdict of the jury.
The court, sitting as a jury, upon proper declarations of law, found in the affirmative, and we do not deem ourselves authorized to disturb the verdict.
Judgment affirmed; the other judges concurring.